Om Prakash Nagar Vs. Appellate Authority and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1040790
CourtMadhya Pradesh High Court
Decided OnJun-21-2012
AppellantOm Prakash Nagar
RespondentAppellate Authority and anr.
Excerpt:
w.p.no.5671/2000 21/06/2012 shri wakeel khan, learned counsel for the petitioner. shri piyush tiwari, learned counsel for respondent no.2. challenging the order dated 14.7.2000 passed by the appellate authority exercising powers under section 58 of the m.p.shops and establishments rules 1959 and challenging the action of respondent no.2 in terminating the services of the petitioner on the ground of unauthorized absence, petitioner has filed this writ petition. it is the case of the petitioner that he was employed in the establishment of the respondent as a gate keeper w.e.f.1989 and his services have been dispensed with w.e.f.1.9.1997, it is stated that petitioner is victim of bhopal gas tragedy and has suffered various complications and in view of the same, he was absent on certain dates and because of his absence, his services have been terminated without showing any reasons, without issuing any charge-sheet as required under the law. inter-alia contending that the action taken is unsustainable on these counts, an appeal was filed under section 58 of the m.p.shops and establishments rules, 1959 and the appeal having been dismissed vide order dated 14.7.2000, petitioner is before this court. learned counsel for the petitioner took me through the facts of the case and the reasons given in the order annexure- p6 rejecting the appeal of the petitioner, argued that the services of the petitioner have been dispensed with on the grounds of unauthorized absence and as the same amounts to misconduct, it cannot be done without issuing charge-sheet to him and accordingly, it would amount to retrenchment and if as the pre-conditions for a valid retrenchment as provided under section 25 f of the industrial disputes act are not complied with, the same is illegal. accordingly, contending that the action taken for termination without holding any enquiry and without appreciating the facts and circumstances of the case and without issuing notice under section 58 of the m.p.shops and establishments rules 1959, is illegal, interference is sought for. reliance is placed on a judgment of this court in the case of eveready industries india limited and others versus p.s.parihar and another 2003 (4) mplj 24 shri piyush tiwari, learned counsel appearing for respondent no.2 refuted the aforesaid and pointed out that a show cause notice was issued to the petitioner for unauthorized absence and he submitted two communications admitting his guilt and based on the same, the action is taken. taking me through order passed by the appellate authority exercising jurisdiction under section 58 of the act, shri tiwari submits that the petitioner himself having admitted his guilt for being absent, no further enquiry was needed and as the action taken is in accordance with law, the order passed is liable to be upheld. as far as payment of salary to the petitioner is concerned, shri tiwari pointed out that a demand draft was forwarded to the petitioner and the payment was received by the petitioner before termination and, therefore, there is no breach of statutory provision. having heard learned counsel for the parties and on perusal of the records, it is seen that except for contending that the petitioner's services have been dispensed with without conducting any enquiry, therefore, it amounts to retrenchment, petitioner has not raised any other grounds. even though, it is the case of the petitioner that his termination amounts to retrenchment as defined under section 2 (oo) of the industrial dispute act but in this case a show cause notice is issued to the petitioner making allegations of unauthorized absence and on the basis of admission of this allegation, the services are terminated. therefore, the termination would fall under the exempted clause contemplated under section 2 (oo) (bb) and, therefore, it will not amount to retrenchment. as far as question of grant of opportunity is concerned, it is clear that a show cause notice was issued to the petitioner, the petitioner submitted his explanation and explanation submitted in hindi is reproduced by the appellate authority which reads as under : “ ; g f d es j k i { kd k j x s l f jl u s d s c k n l s m l s l kw l q w yu k , o a vu s d k s a c k j c q [ k k j l s ih f m + r g ks r k j g r k gs a o g l o ;a h kh ' k jh j l s n q c z y g s , o a xs l i z h k k f o r g k s u s l s c h e k j j g u k l o k h k k f od g s a ft l d k b y k t o g l e ; &l e ; i j d jk r k j g r k gs ].r f k k nw j j g u s d s d kj . k , o a ?. k j e s a m l d s v y k o k v u ; d ks b z c m + k l n l ; u g k s u s d s d kj . k o g n q v~ vh v k os n u ns u s e s a v l e f k z g k s t k r k g s f t l d s d kj . k vu q i f l f k f r y x t k r h g s a t k s f d { k e k ; k s x ; gs a ”. that apart, in another communication made on 27.8.1997, petitioner has again admitted the allegations levelled against him. it was after considering all these factors that the appellate authority has taken the action, on finding that the petitioner a gate keeper working in cinema theatre is absent unauthorizedly and according to his own admission, due to ailment he was absent from duty on certain occasions. considering all these factors.termination is upheld and in doing so, i am of the considered view that the appellate authority has not committed any error warranting interference into the matter exercising limited jurisdiction under article 226 and 227 of the constitution. petitioner was working in the theatre and according to petitioner's own showing before the employer in reply to the show cause notice, due to ailment of the petitioner, he was not in a position to discharge his duties to the best of his abilities. once the employer has found that the employee is absent in an unauthorized manner for whatever reason, it may be, the employer may always take action until and unless the same is shown to be arbitrary and illegal. finding the appellate authority under section 58 of the shops and establishment act, 1959 has given a reasonable order to the facts and circumstances of the case, it does not warrant any interference by this court. the petition is, therefore, dismissed. (rajendra menon) judge nd
Judgment:

W.P.No.5671/2000 21/06/2012 Shri Wakeel Khan, learned counsel for the petitioner.

Shri Piyush Tiwari, learned counsel for Respondent No.2.

Challenging the order dated 14.7.2000 passed by the appellate authority exercising powers under Section 58 of the M.P.Shops and Establishments Rules 1959 and challenging the action of Respondent No.2 in terminating the services of the petitioner on the ground of unauthorized absence, petitioner has filed this writ petition.

It is the case of the petitioner that he was employed in the establishment of the respondent as a Gate Keeper w.e.f.1989 and his services have been dispensed with w.e.f.1.9.1997, it is stated that petitioner is victim of Bhopal Gas Tragedy and has suffered various complications and in view of the same, he was absent on certain dates and because of his absence, his services have been terminated without showing any reasons, without issuing any charge-sheet as required under the law.

Inter-alia contending that the action taken is unsustainable on these counts, an appeal was filed under Section 58 of the M.P.Shops and Establishments Rules, 1959 and the appeal having been dismissed vide order dated 14.7.2000, petitioner is before this Court.

Learned counsel for the petitioner took me through the facts of the case and the reasons given in the order Annexure- P6 rejecting the appeal of the petitioner, argued that the services of the petitioner have been dispensed with on the grounds of unauthorized absence and as the same amounts to misconduct, it cannot be done without issuing charge-sheet to him and accordingly, it would amount to retrenchment and if as the pre-conditions for a valid retrenchment as provided under Section 25 F of the Industrial Disputes Act are not complied with, the same is illegal.

Accordingly, contending that the action taken for termination without holding any enquiry and without appreciating the facts and circumstances of the case and without issuing notice under Section 58 of the M.P.Shops and Establishments Rules 1959, is illegal, interference is sought for.

Reliance is placed on a judgment of this Court in the case of Eveready Industries India Limited and others versus P.S.Parihar and another 2003 (4) MPLJ 24

Shri Piyush Tiwari, learned counsel appearing for Respondent No.2 refuted the aforesaid and pointed out that a show cause notice was issued to the petitioner for unauthorized absence and he submitted two communications admitting his guilt and based on the same, the action is taken.

Taking me through order passed by the appellate authority exercising jurisdiction under Section 58 of the Act, Shri Tiwari submits that the petitioner himself having admitted his guilt for being absent, no further enquiry was needed and as the action taken is in accordance with law, the order passed is liable to be upheld.

As far as payment of salary to the petitioner is concerned, Shri Tiwari pointed out that a demand draft was forwarded to the petitioner and the payment was received by the petitioner before termination and, therefore, there is no breach of statutory provision.

Having heard learned counsel for the parties and on perusal of the records, it is seen that except for contending that the petitioner's services have been dispensed with without conducting any enquiry, therefore, it amounts to retrenchment, petitioner has not raised any other grounds.

Even though, it is the case of the petitioner that his termination amounts to retrenchment as defined under Section 2 (oo) of the Industrial Dispute Act but in this case a show cause notice is issued to the petitioner making allegations of unauthorized absence and on the basis of admission of this allegation, the services are terminated.

Therefore, the termination would fall under the exempted clause contemplated under Section 2 (oo) (bb) and, therefore, it will not amount to retrenchment.

As far as question of grant of opportunity is concerned, it is clear that a show cause notice was issued to the petitioner, the petitioner submitted his explanation and explanation submitted in Hindi is reproduced by the appellate authority which reads as under : “ ; g f d es j k i { kd k j x S l f jl u s d s c k n l s m l s l kW l Q w yu k , o a vu s d k s a c k j c q [ k k j l s ih f M + r g ks r k j g r k gS A o g L o ;a H kh ' k jh j l s n q c Z y g S , o a xS l i z H k k f o r g k s u s l s c h e k j j g u k L o k H k k f od g S A ft l d k b y k t o g l e ; &l e ; i j d jk r k j g r k gS ].r F k k nw j j g u s d s d kj .

k , o a ?.

k j e s a m l d s v y k o k v U ; d ks b Z c M + k l n L ; u g k s u s d s d kj .

k o g N q V~ Vh v k os n u ns u s e s a v l e F k Z g k s t k r k g S f t l d s d kj .

k vu q i f L F k f r y x t k r h g S A t k s f d { k e k ; k s X ; gS A ”.

That apart, in another communication made on 27.8.1997, petitioner has again admitted the allegations levelled against him.

It was after considering all these factors that the appellate authority has taken the action, on finding that the petitioner a Gate Keeper working in Cinema Theatre is absent unauthorizedly and according to his own admission, due to ailment he was absent from duty on certain occasions.

Considering all these factORS.termination is upheld and in doing so, I am of the considered view that the appellate authority has not committed any error warranting interference into the matter exercising limited jurisdiction under Article 226 and 227 of the Constitution.

Petitioner was working in the Theatre and according to petitioner's own showing before the employer in reply to the show cause notice, due to ailment of the petitioner, he was not in a position to discharge his duties to the best of his abilities.

Once the employer has found that the employee is absent in an unauthorized manner for whatever reason, it may be, the employer may always take action until and unless the same is shown to be arbitrary and illegal.

Finding the appellate authority under Section 58 of the Shops and Establishment Act, 1959 has given a reasonable order to the facts and circumstances of the case, it does not warrant any interference by this Court.

The petition is, therefore, dismissed.

(Rajendra Menon) Judge nd